Search

Copyright

Become a Fan

Firing

Book authors want everyone to read their book. It's a universal law. They spend a year or longer typing and retyping words, and when they're done, they want as many people as possible to read what they've written. And I'm no different.

But it occurs to me that some people may want to avoid my book.

Firing at Will is listed (and intended) as a management book. My publisher (Apress) even included a handy little instruction on the back cover: "Shelve in Business/Management." But so far, in every Barnes & Noble store I've checked, they've filed it under "Human Resources." And I get that, because as much as it is a book for managers, it's also a book for HR professionals.

But HR professionals who read it may be in for a surprise. Because the book takes on many of HR’s long-held beliefs, showing how some common practices harm employee morale and business profitability.

Many of the rules and policies that well-meaning HR professionals and employment lawyers put into place lead to toxic, dysfunctional workplaces. These rules are designed to protect companies from bad employees, but they instead drive away good employees.

Instead, the book promotes doing away with outdated management tools that end up becoming crutches for managers and take away their independence and discretion. For example, instead of sticking with these outdated tools, the book advises employers to:

Throw out your personnel handbook (the title of Chapter 16)

Abandon annual performance reviews (“the dumbest managerial tool”)

Dump progressive-discipline policies

Avoid performance-improvement plans (PIPs)

Stay away from arbitration agreements

Treat employees differently

That last one might be the biggest surprise. Employment lawyers are always telling companies to treat everyone the same. But when you do that, you end up treating everyone equally badly.

HR pros who have grown comfortable with these conventional notions may be put off by the shots taken at accepted wisdom.

On the other hand, there are things in the book that many HR people will appreciate. The book advocates for more responsibility and autonomy for human resources. It favors changing “human resources” to “talent” and elevating the role to the C-suite level: “Every company should have a chief talent officer reporting to the CEO.”

If you're a human-resources professional, or any kind of manager or employer, and you're thinking about reading Firing at Will, please proceed with caution. Some of what you read might be upsetting to you.

Over at jayshep.com there's a new excerpt from Chapter 17 ("Hiring to Avoid Firing") of Firing at Will: A Manager's Guide. In it, I talk about the ten things to look for when hiring an employee. The better you do at hiring, the less likely you'll need to fire. Check it out.

One consideration that’s worth keeping in mind is the broader time frame. For example, it’s never a good idea to fire someone right before Christmas. That then becomes the story: “Those bastards fired me two days before Christmas.” That never sounds good, and it may actually increase the risk of a lawsuit.

Other days to avoid: The employee’s birthday. The day after her mother dies. The day after the Red Sox win the World Series. The basic rule here is this: be sensitive about the timing, but don’t worry about the “rules” about times and days.

Throughout the book, I talk about the need to fire a problem employee once you know that he or she is never going to work out. But there are exceptions, and Christmastime is one of them. Yes, I know it's the end of the year, and maybe there are tax or accounting implications. But don't do it. Either plan ahead and do it in November, or wait until a couple of weeks into the new year. Don't make the story "I got fired at the holidays."

Speaking of holidays, it's not too late to get a copy for your managerial loved ones' digital stockings. You can pick up the Kindle version here and the Nook version here. And if you want to go old school, the paperback version is available from Amazon here.

As many of you now know, my new book Firing at Will: A Manager's Guide was published by Apress last week. It's an unlawyerly guide to the riskiest thing you can do at work with your clothes on: firing employees.

So far, so good. Amazon is currently listing it as number 7 on its Kindle list of "Hot New Releases in Business Management & Leadership." (It's right behind the Steve Jobs biography. No, not that Steve Jobs biography. The other one.)

I'll be honest with you: I've never been a fan of people who abandon their blogs for a few months and then come back with a lame explanation of how busy they've been. So I'm reluctant to do that here, knowing how long it's been since I've posted. But I do feel the need to give you an update and explain how I'm taking Gruntled Employees to the next level.

First and foremost, I wrote a book for managers and employers that embodies the Gruntled Employees philosophy. It's called Firing at Will: A Manager's Guide, and its tagline is "An Unlawyerly Guide to Management's Riskiest HR Decision." It's being published by Apress and its official publication date is November 22, although it may come out a couple of weeks early. You can check out the book's website, its Facebook page (click "Like" if you're so inclined), and you can preorder it from Amazon.

I've described the book's topic — firing employees — as being the riskiest thing you can do at work with your clothes on. Even though it's a book for employers and managers written by a management-side employment litigator, it's actually very much a pro-employee book. Because as longtime Gruntled readers know, how well you treat your employees is the biggest factor in how well they'll perform — and in how likely they will be to sue you. As the book says, people don't sue people they like.

The book's style will be familiar to Gruntled readers. I had no interest in writing a book that sounds like the back of a rental-car agreement. There isn't a hereinafter or a pursuant to in the 300 pages. In fact, it was this blog that led the publisher to reach out to me and suggest the project.

Besides writing the book, another major change this year has been the decision to close Shepherd Law Group after 13 years and step away from practicing law. As much as I loved the practice — giving advice to employers and standing up for them in court — I felt it was time to bring my message to a larger audience. As a practicing lawyer, I was only helping one client at any given moment. By writing and speaking, I can help many more employers at the same time by teaching them how to improve their workplaces. And the best way for employers to do that is by freeing individuals to do their best work.

One area where I'm trying to help employers is in pricing professional services. Specifically, I want to teach law firms, accounting firms, ad agencies, consultancies, design firms, and other professional companies how to price their knowledge instead of billing for time. I've formed Prefix, LLC to focus on this, and I write about the topic over at The Client Revolution.

So now you're caught up. Please check out the book when you have a moment. And thanks for reading.

We have a rule at Shepherd Law Group: we won't try to talk you out of firing an employee. I believe that once a manager has made the difficult decision to fire someone, the relationship with that employee is already irreparably broken. At that point, it would be a mistake to try to talk the manager out of it. Instead, our advice would focus on how to do it the right way and minimize the risk of an expensive lawsuit.

We also have a corollary to that rule: we won't try to talk you into firing an employee. For all good managers, firing someone is a very difficult decision, not to be made lightly. Instead, we will advise the manager on how best to handle the situation, and wait until he or she comes to the termination decision naturally.

But that said, there are seven deadly workplace sins — seven capital crimes — that require the firing of an employee. They are:

Workplace violence

Dishonesty

Theft

Criminal activity

Insubordination

Sexual harassment, if it's serious or willful

Discrimination, if it's serious or willful

The first four are obvious and self-explanatory. As for the fifth, insurbordination, I mean it in the real sense of the word. Flippancy is not insubordination. (If it were, I would be unemployable. On second thought, maybe that's why I have my own firm.)

I'm sure there will be grumbles over the qualifiers I placed on the last two, sexual harassment and discrimination. Employers should take both of these very seriously. But there are degrees of harassment and discrimination, and termination might be overkill for boorish behavior that lacks malice and that could be cured with training.

What do you think? Do you agree that these are capital crimes in the workplace? Have I forgotten any? Leave your comments below.

This might sound obvious, but when you’re firing an employee, you need to tell the truth.

Actually, that’s only half right. Well, closer to two thirds.

Anyone who’s ever watched Law and Order or been in a courtroom knows by heart the oath that witnesses take before testifying:

Do you swear to tell the truth, the whole truth, and nothing but the truth?

I do.

Makes sense. It really breaks down this way:

You’ll tell the truth

You won’t leave anything out, and

You won’t add any lies.

For a witness in a court proceeding where the goal is to get justice, this three-part standard for testimony is the best way to do it.

But the workplace is not a court of law. (Yeah, I heard you say “duh.”) The goal isn’t necessarily justice. Instead, the goal is to run a workplace the right way and to avoid unnecessary and costly litigation.

Firing an employee is a high-risk situation. When you do it, you should follow only the first and third prongs of the testimonial oath:

You’ll tell the truth

You won’t add any lies.

What you say could come back to haunt you and the company in a lawsuit, so make sure that everything you say is the truth. Otherwise, if it can be shown that you lied at this point, it’s not hard for a judge or jury to think that you or the company lied at other points. Cases are won and lost on credibility, more than they are on laws and lawyering.

But forget about the “whole truth” part (the “you won’t leave anything out” part). You have no obligation to tell the fired employee absolutely everything, and you almost certainly shouldn’t. For example, you might fire somebody because their performance is bad and because, frankly, you just don’t like them. In the termination meeting, you should leave out the “frankly, I just don’t like you” part.

Managers and HR professionals understandably want to take the edge off these high-stress meetings. There is a desire to sugarcoat the termination a bit, to relieve the tension and perhaps allow the employee to save some face on the way out. That’s fine.

But resist the temptation to say anything that’s not true. It’s not worth it. Instead, sugarcoat the termination by leaving out the part of the truth that might be incendiary and hurtful. A terminated employee is entitled to know why he or she is being fired, but not every single reason.

The always-excellent Carolyn Elefant has this post, "U.K. Lawyers Get the Message: 1-800-U-R-Fired," over at one of my favorite blawgs, Legal Blog Watch. Carolyn reports (citing a Daily Mailstory) on how 14 trainee solicitors (which is British for "baby lawyers") were laid off by Freshfields in London. Freshfields sounds like an organic supermarket chain, but is actually the fourth-largest law firm in the world and a member of Britain's "Magic Circle" (which sounds like a Harry Potter sequel, but isn't).

Like most major law firms, Freshfields has had to trim its staff in response to the worldwide economic crisis. What makes them different is the way they did it: by leaving the unlucky 14 a voicemail. Not only that, but instead of partners doing the deed, they staffed it out to HR.

What's British for power tool?

Apparently, Magic Circle firms respond to bad press the same way their American cousins do: by defending the indefensible. The Mail story quoted a firm flack:

It was not ideal from our perspective but we were trying to get the information out as soon as possible. We did not want to take the chance of them hearing first from someone else.

To be fair, Freshfields gave the laid-off lawyers a severance to soften the blow. How much? you might ask. Well, the firm spokesperson wanted to be discreet:

Those people that we have not retained received an ex-gratia payment. We feel it would not be appropriate to confirm the exact amount.

Of course, of course. And it's not like that word would get out. A secret's a secret, old chap. Oh, wait. What's this? The Internet? Bloody hell!

Turns out the firm gave severance payments of a whopping £700.

Apparently, "ex-gratia" is British for cheap.

This cowardly method for firing people is in danger of becoming a trend. Last year, the Chicago Sun-Times fired people over the phone. Recently, the Boston Globereported on a local social-media-software company revealing layoffs via Twitter and blogs. And Gruntled Employees' very first post, nearly three years ago, was on firing by email: "Radio Shack Deletes 400 Workers, Common Sense."

File this under "Just because you can, doesn't mean you should." Employers: don't fire people by phone, email, voicemail, Twitter, or blogs.

"I want to run an idea by you that I think is important, and I'd like to get your reaction to it," Levy began. "I'd like to do what we can to protect the lower-wage earners — the transporters, the housekeepers, the food service people. A lot of these people work really hard, and I don't want to put an additional burden on them.

"Now, if we protect these workers, it means the rest of us will have to make a bigger sacrifice," he continued. "It means that others will have to give up more of their salary or benefits."

He had barely gotten the words out of his mouth when Sherman Auditorium erupted in applause. Thunderous, heartfelt, sustained applause.

Cullen goes on to report that the workers began flooding Levy’s inbox with suggestions on how to avoid mass layoffs:

The consensus was that the workers don't want anyone to get laid off and are willing to give up pay and benefits to make sure no one does. A nurse said her floor voted unanimously to forgo a 3 percent raise. A guy in finance who got laid off from his last job at a hospital in Rhode Island suggested working one less day a week. Another nurse said she was willing to give up some vacation and sick time. A respiratory therapist suggested eliminating bonuses.

Maybe it will work, and maybe it won’t. But Levy and Beth Israel deserve credit for considering alternatives before dropping the layoff hammer.

If your company was one of those that laid off a combined half million employees in the past six months, you’ve already sent out a bunch of COBRA notices. Thanks to the Obama Administration and Congress, now you have to do it again.

Last week, President Obama signed into law the American Recovery and Reinvestment Act of 2009, commonly called the Stimulus Act. The new law weighed in at 407 pages and roughly $800 billion. Hidden in the thicket of “shovel-ready” projects is a provision that dramatically changes employers’ COBRA responsibilities.

COBRA continuation coverage applies to workers at companies employing 20 or more employees. When an eligible worker loses health-insurance benefits after leaving a job, COBRA provides the employee the opportunity to receive the same benefits for up to 18 months. Until now, the employee was solely responsible for the premiums.

But under the Stimulus Act, employers now have to pay 65% of the worker’s premiums for nine months. The federal government will then reimburse the employer by allowing it to take a credit on payroll taxes. In effect, though, the employers are lending this money to the federal government to help finance the economic recovery. Because in the lull between the recent Lilly Ledbetter Fair Pay Act and the upcoming, ironically named Employee Free Choice Act, it must have seemed like a good idea to pile on employers some more.

(The stock market seems to disagree, with the S&P 500 down 13% since the Inauguration and more than 20% since New Year's Day.)

The new COBRA subsidy does not cover every employee equally. The law phases out the subsidy for so-called “high-income individuals” — people making more than $125,000 a year (or $250,000 a year for married joint filers) — in a complicated scheme involving taxable premium reductions. And while the subsidy applies to workers who are “involuntarily terminated,” the Act does not define that term. The Conference Committee report suggested that people fired for gross misconduct would not be eligible.

What’s particularly tricky is that the Act reaches back in time to cover employees laid off since September 1, 2008 (and goes forward through December 31, 2009). That means that employers who sent out COBRA notices to laid-off employees over the past six months now have to contact them to give the workers another chance to elect COBRA coverage. A new and improved COBRA notice form is expected from the Department of Labor by March 17. What’s not clear is how to treat employees who got their COBRA coverage paid for as part of a severance agreement. Like the recovery process itself, this issue is a work in progress.

What you can do

Read the text of the Stimulus Act of 2009 (but not while driving or operating heavy machinery)

Immediately reexamine COBRA eligibility over past six months

Talk to your employment counsel about how to handle employees already laid off

Contemplate the seeming prescience in this quote from the end of the 1986 Stallone classic, Cobra:

DETECTIVE MONTEI personally would have looked for a more subtle solution, but that's not your style.(offers his hand)No hard feelings.